A witness in a personal injury case testifies that she does not remember details of an event she witnessed. The attorney provides the witness with a document she prepared shortly after the event to refresh her memory. After reviewing the document, the witness states she remembers the details and resumes testifying. During cross-examination, opposing counsel objects, questioning whether the witness had sufficient basis to testify after reviewing the document. What is the best response to the objection?
The objection should be overruled because the witness resumed testifying from their revived memory, and the document used to refresh their recollection is not required to be introduced as evidence.
The objection should be sustained unless the witness can confirm their authorship of the document used to refresh their memory.
The objection should be sustained because the witness relied on the document rather than their own independent recollection, making the testimony inadmissible.
The objection should be overruled because any document used to refresh a witness’s memory may need to be independently admitted into evidence.
The correct response notes that under the Federal Rules of Evidence, a document can be used to refresh a witness’s memory if it helps them recall details, provided their testimony is based on their renewed memory and not on the document itself. The rule allows the document to assist the witness without requiring its introduction unless opposing counsel requests it for inspection or use in cross-examination.
Some answers mistakenly suggest the document's admission into evidence is mandatory or that the witness must have authored the document to testify, which is not accurate. The Rules of Evidence emphasize the independence of the witness’s testimony over the document's status. This avoids conflating refreshing recollection with using a recorded recollection, which requires stricter standards for admissibility.
Other answers misinterpret the role of the document and its relationship to the witness’s own recollection.
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Can opposing counsel challenge the use of a document used to refresh a witness's memory?